Legal thoughts, since 2005.

(eh-youse-dem generous) v adj. Latin for "of the same kind," used to interpret loosely written statutes. Where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed. Example: if a law refers to automobiles, trucks, tractors, motorcycles and other motor-powered vehicles, "vehicles" would not include airplanes, since the list was of land-based transportation.

In the last 5 years, has at least one of your flights been delayed for hours on end with no explanation whatsoever? Have you sprinted through a terminal past multiple fast food restaurants in an effort to catch your connecting flight, your stomach rumbling, knowing full well that you can't stop--and that you'll be fed no more than 10 peanuts during your flight, even though it occurs during a mealtime? Have you felt as if you were performing some sort of bizarre strip tease at the security check points? Have you ever stood in an airport cursing the unhelpful and downright surly personnel under your breath, or even out loud?

I know I have.

So, I can totally relate to the irate reaction that Carol Ann Gotbaum, a New Yorker, apparently exhibited after gate crews refused to allow her to board her flight, even though the plane was still in the gate.

Granted, she was late, but who knows why she was late? Perhaps her prior flight had been delayed? Maybe she'd been detained by security because it was the third Tuesday of the month, thus mandating the detention of every fifth woman with brown hair who walked with a limp and wore a size 7 shoe. I mean honestly--who the hell knows what sort of ridiculous system TSA has in place on any given day.

And who knows what was waiting for her at the end of her flight? Perhaps an ailing child or relative? An important and time sensitive business meeting? Cutting edge cancer treatment?

Airport and security personnel at Sky Harbor International Airport in Phoenix likely had no more knowledge than I as to what peculiar set of circumstances led her to become so irate. And, I doubt they really cared. Their solution was to handcuff her and place her in an airport holding cell--where she died, as explained in this AP article:

A traveler who may have accidentally choked herself to death while handcuffed in an airport holding cell was a "wonderful" woman and mother, according to New York City's public advocate, who is her relative...

The events that led to Gotbaum's death began when she became irate over not being allowed on a US Airways flight, though she was rebooked on a later flight, officials said. Officers handcuffed her and took her to the holding room, where she kept screaming, authorities said. They checked on her when she became quiet and found her unresponsive, said Phoenix police Sgt. Andy Hill.

It appears Gotbaum may have tried to get out of her handcuffs, which ended up around her neck, Hill said. A medical examiner will determine the cause of death.

I don't know about you, but the next time I travel, I'm taking the train.

Corporation Counsel Michael A. Cardozo last night called for legislation to help attorneys working in the public sector cover the cost of repaying their student loans....He proposed that the program be funded by increasing the $250 fee for taking the bar exam and the $350 fee for biannual state registration for attorneys employed by large and mid-sized firms.

What an absolutely fabulous idea, dahling!

Let's pull a Robin Hood on BigLaw and tax the cold hearted, rich bastards at the top of the legal ladder and send some of that money downhill to the lowly do-gooder Legal Aid lawyer-types--those naive "true believers" who actually want to try and make a difference in the world--aka--the alleged "losers" that those who attended "top tier" law schools wouldn't dare be seen with in public, lest they be taunted endlessly by their colleagues, most of whom seem to spend inordinate amounts of time leaving nasty, misogynistic, anonymous comments at The Volokh Conspiracy, The Wall Street Journal Law Blog and Above the Law blogs.

Oh, that such a law would come to pass!

Call me cynical, but I just don't see it happening. There's no way that the most powerful attorneys in New York would allow it to happen. And, this less-than-rousing endorsement from the speech of the bill's sponsor serves only to support my suspicions that a law of this sort will never come to fruition:

There is some slight hope in both Albany and Washington that some kind of loan forgiveness program might become a reality. This year the State created a limited loan forgiveness program, structured along the lines I just mentioned, for attorneys employed by district attorney offices in the state Unfortunately, the Legislature appropriated just $1.5 million to fund the program, which expires in any event a year from now. Moreover, the legislation is limited to district attorneys offices, and, unlike other legislation that has been introduced in Albany, doesn’t include public defenders, attorneys representing state or local governments, or civil legal service attorneys. (Emphasis added).

Oh, and forget what I said about do-gooder Legal Aid types. Apparently just those who prosecute stand to even have a chance of benefiting from a loan forgiveness program. Imagine that.

Mark my words, the only time public interest lawyers will experience loan forgiveness straight from the pockets of BigLaw is when when pigs fly.

n. an act, particularly of a governmental employee, which is performed according to statutes, legal authority, established procedures or instructions from a superior, without exercising any individual judgment.

This week's Legal Currents column, which is published in The Daily Record, is entitled "The First and Sixth Amendments and God" The article is set forth in full below, and a pdf of the article can be found here.

Last year, Nebraska District Court Judge
Jeffre Cheuvront, while presiding over
a rape trial, ruled that the use of certain
words was barred during the trial.

I’m fairly confident he never envisioned his
ruling would result in two separate and
equally unusual lawsuits. The first is a federal
suit brought by an alleged rape victim against Judge
Cheuvront, claiming his ruling violated her First Amendment
right to free speech. The second was filed in
response to the federal lawsuit by a Nebraska state senator
against God, alleging God is the cause of untold death
and terror and seeking a permanent injunction to prevent
him from doing so in the future.

Concerned with protecting the defendant’s Sixth
Amendment right to a fair trial, and in keeping with a
recent trend in criminal courts across the country, Judge
Cheuvront forbade witnesses from using the words
“rape,” “victim,” “assailant,” “sexual assault kit,” and
“sexual assault nurse examiner.”

Criminal defense attorneys praised the ruling, asserting
the term “rape” is a legal conclusion, and a complainant is
not a “victim” of “rape” until a jury of her peers unanimously
determines it was so. Victim advocates decried
the ruling, contending that being forced to describe the act
of “rape” as simply “sex” is an assault in and of itself.

Following two mistrials, the accuser filed a federal lawsuit
seeking an order declaring Judge Cheuvront violated
her First Amendment rights when he barred her from
speaking the forbidden words at trial.

Shortly thereafter, U.S. District Court Judge Richard G.
Kopf issued an order requiring the plaintiff and her counsel
to show why the lawsuit was not frivolous. The court
stated, in relevant part: “There is something
profoundly disturbing about the notion that a
federal judge has the power to tell a state
judge how to do his job. ...
“(T)here is also something profoundly disturbing
about a judge telling a citizen that she
cannot say that she was raped when testifying
as a victim in a criminal case, particularly
when the victim is presumably trying to do
nothing more than describe what happened to
her. This brings to mind the blue burkas of a
distant place. …

“I have serious reservations about whether
this action was commenced for the improper
purpose of forcing Judge Cheuvront to recuse himself
from presiding over the state criminal matter or for the
improper purpose of generating pretrial publicity about
the plaintiff and the criminal case…(and) I cannot find
any precedent for a suit of this kind and the plaintiff could
avoid any ‘injury’ whatsoever by simply electing not to
testify, or, if subpoenaed, by invoking her Fifth Amendment
privilege.”

While Judge Kopf adeptly summed up the conflicting
and important constitutional issues at stake, I take issue
with his assertion that the plaintiff could avoid injury by
refusing to testify or invoking yet another important constitutional
right pursuant to the Fifth Amendment. To suggest
that refusing to testify, thereby allowing her attacker
to go free, allows her to “avoid an ‘injury’” is preposterous,
to say the least. Furthermore, it does not follow that because there
is no precedent for a lawsuit, the claim is unprosecutable
or frivolous.

Arguably frivolous, however, is Nebraska State Sen.
Ernie Chambers’ lawsuit, filed in Douglas County Court,
against God. Although Chambers contends the lawsuit
was filed in direct response to the “frivolous” First
Amendment claim pending against Judge Cheuvront, his
motivation for choosing God as the defendant in the case
is unclear, as is the underlying rationale for his claims. I can
only hope more learned legal minds than my own can discern
the tenuous connection between the two.

Meanwhile, I’m more concerned with the issue of jurisdiction.
Sen. Chambers contends the county court has
jurisdiction over the Almighty since God is everywhere.
But how exactly does one effect service on God?

I don’t know about you, but I very well may lose countless
nights of sleep puzzling over this peculiar procedural
issue.

******

I submitted this article last Thursday. Between now and then, God responded to the lawsuit and it looks like we're on the same page. Failure to effect service--that's the ticket!

n. 1) a clause in a statute or zoning ordinance (particularly a city ordinance) which permits the operator of a business or a land owner to be exempt from restrictions on use if the business or property continues to be used as it was when the law was adopted. Upon passage of the statute or regulation, the specific property may be referred to as "grandfathered in." Example: the city passes an ordinance which does not permit retail businesses in a particular zone, but any existing store can continue to function in the area, even with new owners. However, if the premises stop being a retail outlet then the grandfather clause will lapse. 2) among the state constitutional amendments passed by southern states in the late 1800s to keep blacks from voting, "grandfather clauses" denied voter registration to people who were illiterate, who did not own property or could not pass a test on citizenship obligations, unless their grandfathers had served in the Confederate Army. Such laws are now unconstitutional.

Today I came across a really useful tutorial at the New York State Library's web site that walks you through the process of obtaining the legislative history of a New York State Law. There's also a really helpful section that explains how to determine the legislative intent behind a statute.

I could have used this information a few weeks ago when I was researching the legislative intent behind a section of the AUO statute. Better late than never, I suppose.

Search

disclaimer

This site is intended purely as a resource guide for educational and informational purposes and is not intended to provide specific legal advice. This site should not be used as a substitute for competent legal advice from a professional attorney in your state. The use and receipt of the information offered on this site is not intended to create, nor does it create, an attorney-client relationship.

Please feel free to contact me via e-mail or otherwise. However, please be advised that an attorney-client relationship is not created through the act of sending electronic mail to me.

The comments on this blog are solely the opinions of the individuals leaving them. In no way does Legal Antics or Nicole L. Black endorse, condone, agree with, sponsor, etc. these comments.

Further, any information provided on this blog or in the comments should be taken at your own risk.